Affirmative Action

Author:Henry J. Abraham

Page 53

The Supreme Court's momentous decisions in BROWN V. BOARD OF EDUCATION and BOLLING V. SHARPE (1954), and its subsequent implementation decision in Brown II (1955), were followed by a long string of rulings designed to render meaningful and effective the egalitarian promise inherent in the FOURTEENTH AMENDMENT. Compulsory racial SEGREGATION was at last no longer constitutionally permissible; the Fourteenth Amendment's guarantee of the EQUAL PROTECTION OF THE LAWS had become the effective law of the land for all levels of the public sector.

But in the judgment of a good many Americans, equality qua equality, even when conscientiously enforced with an even hand, would neither suffice to enable those previously deprived on racial grounds to realize the promises of equality of opportunity, nor would it atone, and provide redress, for the ravages wrought by two centuries of past discrimination. Consequently, as strongly urged by President LYNDON B. JOHNSON, programs were established in both the public and the private realms that were designed to go well beyond "mere" equality of opportunity and provide not only remedial but preferential compensatory action, especially in the worlds of EDUCATION and employment. Labeled "affirmative action"?as distinguished from "neutrality"?these programs were instituted to bring about increased minority employment opportunities, job promotions, and admissions to colleges and universities, among others. Understandably, affirmative action programs quickly became controversial because of their resort to RACIAL QUOTAS, also called euphemistically "goals" or "guidelines." Their proponents' justification has been that to provide an absolute measure of full equality of opportunity based upon individual merit does not suffice; that, given the injustices of the past, both preferential and compensatory treatment must be accorded through "affirmative action" that all but guarantees numerically targeted slots or posts based upon membership in racial groups or upon gender. Most critics of the policy's underlying philosophy have not necessarily objected to "affirmative action" policies such as aggressive recruiting, remedial training (no matter what the expense), and perhaps not even to what Justice LEWIS F. POWELL in REGENTS OF THE UNIVERSITY OF CALIFORNIA V. BAKKE (1978) termed a justifiable "plus" consideration of race along with other equitable factors. They do, however, object strenuously to policies that represent, or may be regarded as sanctioning, "reverse discrimination," generally characterized by the resort to such devices as the numerus clausus, that is, rigid quotas set aside to benefit identifiable racial groups, as in the controversial case of UNITED STEELWORKERS OF AMERICA V. WEBER (1979); to double standards in grading, ranking, and similar requirements on the employment, educational, and other relevant...

To continue reading